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Exhibit 10.22
SECOND AMENDMENT AND WAIVER, dated as of October 20, 2000 (this
"AMENDMENT"), to the Credit Agreement, dated as of April 29, 1998 (as amended by
the First Amendment to the Credit Agreement, dated as of October 22, 1999, the
"CREDIT AGREEMENT"), among GROVE WORLDWIDE LLC, a Delaware limited liability
company (the "COMPANY"), GROVE CAPITAL, INC., a Delaware corporation and a
Wholly Owned Subsidiary of the Company ("GROVE CAPITAL"; the Company and Grove
Capital, individually, a "BORROWER" and collectively, the "Borrowers"), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (collectively, the "LENDERS"; individually, a
"LENDER") and THE CHASE MANHATTAN BANK, as Administrative Agent (as hereinafter
defined) for the Lenders hereunder.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed
to make, and have made, certain loans and other extensions of credit to the
Borrowers; and
WHEREAS, the Borrowers have requested, and, upon this Amendment
becoming effective, the Required Lenders have agreed that certain provisions of
the Credit Agreement be amended in the manner provided for in this Amendment.
NOW, THEREFORE, in consideration of the premises contained herein,
the parties hereto hereby agree as follows:
1. DEFINED TERMS. Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
2. AMENDMENTS TO SECTION 1 OF THE CREDIT AGREEMENT. Subsection 1.1
of the Credit Agreement is hereby amended as follows:
(a) by adding the following definitions in their proper alphabetical
order:
"ACCOUNTS": all of the accounts, instruments, documents, chattel
paper and general intangibles of the Borrower or any of its Subsidiaries,
whether secured or unsecured, whether now existing or hereafter created or
arising, and whether or not specifically assigned to the Administrative
Agent for the ratable benefit of the Lenders.
"ACCOUNT DEBTOR": the Person obligated on an Account.
"BILL AND HOLD": Accounts that have been invoiced but for which the
related goods have not been shipped (other than Accounts for which the
customer purchase order and Included Divisions' order acknowledgment and
invoice acknowledge the transfer of title upon final testing and
inspection of the unit up to a maximum of $1,000,000 in any one month,
PROVIDED, that such Account is not more than 30 days past the invoice
date).
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"BORROWING BASE": at any date, the amount of the then most recent
computation of the Borrowing Base, determined by calculating the amount
equal to:
(a) 85% of (i) Domestic Eligible Accounts minus (ii) the applicable
Dilution Reserve at such date;
PLUS
(b) 50% of (i) Deutsche Grove Eligible Accounts minus (ii) the
applicable Dilution Reserve;
(c) 25% of Eligible Raw Materials;
(d) 25% of Eligible Work-in-Process;
(e) 55% of Domestic Eligible Finished Goods;
(f) 25% of (i) Deutsche Grove Eligible Finished Goods minus (ii) the
Reserve for Leasehold Obligations; and
(g) 20% of Eligible Service Parts.
Borrowing Base standards may be fixed and revised from time to time by the
Administrative Agent in the Administrative Agent's Permitted Discretion
with ten days prior notice to the Company. The Borrowing Base will be
computed hereunder by the Company on a monthly basis based on information
available to the Administrative Agent including, without limitation, the
periodic reports and listings delivered to the Administrative Agent in
accordance with Section 6, and a monthly Borrowing Base Certificate from a
Responsible Officer of the Borrower presenting the Borrower's computation
of the Borrowing Base will be periodically delivered to the Administrative
Agent in accordance with Section 6.12(a).
"BORROWING BASE CERTIFICATE": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit M.
"COMMERZBANK FACILITY": the cash credit line in the amount of DM
51,000,000 from Commerzbank (Wilhelmshaven) and Deutsche Bank to Deutsche
Grove GmbH, dated September 2000.
"DEUTSCHE GROVE": a division of Grove Worldwide Holdings
Germany GmbH in accordance with the Borrower's current and
historical classification.
"DEUTSCHE GROVE ELIGIBLE ACCOUNTS": on any date of determination
thereof, all Accounts of Deutsche Grove on such date, that (i) have been
invoiced and represent the bona fide sale of merchandise in the ordinary
course of business in connection with its trade operations and (ii) are
deemed by the Administrative Agent in good faith to be eligible for
inclusion in the calculation of the Borrowing Base. Without limiting the
foregoing, to qualify as a Deutsche Grove Eligible Account, an Account
shall indicate
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Deutsche Grove (whether by legal or trade name) as sole payee and as sole
remittance party. In determining the amount to be so included, the face
amount of Accounts shall be reduced, without duplication, by (a) the
aggregate amount of all cash received in respect of the Accounts but not
yet applied by Deutsche Grove to reduce the amount of Accounts, (b) the
amount of all actual returns, discounts, claims, credits, charges, price
adjustments or other adjustments asserted or taken by Account Debtors of
Deutsche Grove (to the extent the same are included in Accounts), (c) the
amount of Deutsche Grove Finance Company Receivables and (d) the aggregate
amount of all other reserves, limits and deductions provided for in this
definition and elsewhere in this Agreement.
Standards of eligibility for Accounts may be fixed and revised from
time to time solely by the Administrative Agent in the Administrative
Agent's Permitted Discretion with ten days prior notice by the
Administrative Agent to the Borrower.
In general, without limiting the foregoing, a Deutsche Grove
Eligible Account must comply with all of the following requirements
(unless otherwise approved from time to time in writing by the
Administrative Agent):
(a) all payments due on the Account have been billed and invoiced in
a timely fashion and in the normal course of business;
(b) no payment on any invoice is outstanding on the Account for more
than 90 days after the date of invoice or is more than 60 days
past due (to be reduced by the net credit balances within these
categories);
(c) such Account is not an extended terms account, payment plan, or
single contract account which offers terms of more than 30 days
from invoice date;
(d) the payments due on 50% or more of all Accounts owing to
Deutsche Grove by the applicable Account Debtor are less than 90
days past the date of invoice;
(e) the total Accounts owing to Deutsche Grove by the applicable
Account Debtor constitute 10% or less of the aggregate Accounts
owing to Deutsche Grove by all Account Debtors, or if the total
Accounts of the applicable Account Debtor exceed 10% of the
aggregate of all Accounts owing to Deutsche Grove by all Account
Debtors, the Accounts of the applicable Account Debtor up to
such 10% limit shall be deemed to constitute Deutsche Grove
Eligible Accounts (subject to compliance with all other
applicable standards of eligibility) and the Accounts of the
applicable Account Debtor exceeding such 10% limit shall be
included within Deutsche Grove Eligible Accounts (subject to
compliance with all other applicable standards of eligibility)
only if the Accounts exceeding such 10% limit are backed or
secured by credit insurance or a guarantee issued by a bank
reasonably satisfactory to the Administrative Agent in all
respects and such credit insurance or such guarantee has been
assigned to
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or issued in favor of, as the case may be, the Administrative
Agent upon terms acceptable to the Administrative Agent in its
discretion;
(f) the Account (x) is free and clear of all security interests,
liens, charges and encumbrances of any nature whatsoever (except
for the Lien in favor of the Administrative Agent and any Lien
under the Commerzbank Facility) and (y) has not been sold or
factored to Commerzbank under the Commerzbank Facility;
(g) the Account arose from a completed, outright and lawful sale of
goods, to which title has passed to the applicable Account
Debtor on an absolute sales basis, or from the rendering of
services by or on behalf of Deutsche Grove;
(h) the Account does not arise out of a bill and hold,
sale-or-return, consignment, memo, progress billing,
promotional, sample or trial basis, C.O.D. or cash in advance
arrangement or is subject to any setoff, contra (any amount for
which there is an offsetting liability from Deutsche Grove),
offset, deduction, dispute, chargeback, credit, counterclaim,
subject to retainage or holdbacks of any type or other defense
arising out of the transactions represented by the Account or
independently thereof;
(i) the applicable Account Debtor is not any Governmental Authority,
unless there has been compliance satisfactory to the
Administrative Agent in all respects with the Assignment of
Claims Act or similar foreign statutes;
(j) the applicable Account Debtor is not an Affiliate of Deutsche
Grove or any of its Subsidiaries or an employee, officer, sales
representative, agent or shareholder thereof;
(k) the Account Debtor must be located in the United States, France,
Germany, Italy, Spain, Switzerland or the United Kingdom or in
another foreign jurisdiction acceptable to the Administrative
Agent, except for Accounts insured or backed by credit insurance
or a letter of credit in form and substance acceptable to the
Administrative Agent in all respects;
(l) the Account complies with all material Requirements of Law
(including without limitation, all usury laws, fair credit
reporting and billing laws, fair debt collection practices and
rules, and regulations relating to truth in lending and other
similar matters);
(m) the Account is in full force and effect and constitutes a legal,
valid and binding obligation of the applicable Account Debtor
enforceable in accordance with the terms thereof;
(n) the Account is denominated in and provides for payment by the
applicable Account Debtor in Dollars, Deutsche Marks, Euros,
Pounds Sterling or other currency acceptable to the Agent;
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(o) the Account has not been and is not required to be charged or
written off as uncollectible in accordance with GAAP;
(p) the Account Debtor (i) is not a creditor of Deutsche Grove, (ii)
has not asserted a right of setoff against Deutsche Grove or
(iii) has not disputed its liability (whether by chargeback or
otherwise) or made any claim with respect to the Account or any
other Account of Deutsche Grove which has not been resolved, in
each case without duplication, to the extent of the amount owed
by the borrower to the Account Debtor, the amount of such actual
or asserted right of setoff;
(q) the Account Debtor is solvent and is not the subject of any
bankruptcy case or insolvency proceeding of any kind;
(r) a check, promissory note, draft, trade acceptance or other
instrument for the payment of money has been received, presented
for payment and returned uncollected for any reason.
In determining the aggregate amount of Accounts from the same
Account Debtor that are unpaid more than 90 days from the date of invoice
or more than 60 days from the due date pursuant to clause (b) above, there
shall be excluded the amount of any net credit balances relating to
Accounts with invoice dates more than 90 days prior to the date of
determination or more than 60 days from the due date.
"DEUTSCHE GROVE ELIGIBLE FINISHED GOODS": on any date, the Inventory
Value of Finished Goods of Deutsche Grove (subject to the same standards
of eligibility as set forth in the definition of "Eligible Inventory"
hereunder) on such date as determined by an analysis of production reports
or physical inspection of work-in-process in accordance with the current
and historical classification of finished goods excluding prototypes,
demonstrators, used cranes and manlifts, and rental cranes and manlifts.
"DEUTSCHE GROVE FINANCE COMPANY RECEIVABLES": 10% of the value of
Accounts that are less than 90 days from invoice date and owed from
customers that have refinanced their receivables with finance companies
that Deutsche Grove has agreed to provide residual value guarantees in
excess of 10%. The Administrative Agent may adjust this percentage based
on a quarterly review of a supporting documents submitted in accordance
with Section 6.12.
"DILUTION FACTORS": with respect to any period, the aggregate amount
of all gross deductions, credit memos, returns, adjustments, allowances,
bad debt write-offs and other non-cash credits to Accounts of the Included
Divisions (or, for purposes of calculating the applicable Dilution Reserve
in the case of Deutsche Grove, Accounts of Deutsche Grove) arising from
transactions conducted in the normal course of business.
"DILUTION RATIO": at any date, the amount (expressed as a
percentage) equal to (a) the aggregate amount of the applicable Dilution
Factors for the 12 most recently ended fiscal months DIVIDED by (b) total
gross sales of the Included Divisions or Deutsche Grove, as the case may
be, for the 12 most recently ended fiscal months; provided that
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the Dilution Ratio for Deutsche Grove be fixed at the higher of 12.0% or
the most recently calculated dilution ratio until such time as Deutsche
Grove has provided six consecutive months of rollforward data as detailed
at Exhibit M hereto that is acceptable to the Administrative Agent (at
which time the Dilution Ratio shall be the amount most recently
calculated).
"DILUTION RESERVE": at any date the applicable Dilution Ratio
multiplied by the Domestic Eligible Accounts (or, for purposes of
calculating the applicable Dilution Reserve in the case of Deutsche Grove,
the Deutsche Grove Eligible Accounts) on such date.
"DOMESTIC ELIGIBLE ACCOUNTS": on any date of determination thereof,
all Accounts of the Included Divisions on such date, that (i) have been
invoiced and represent the bona fide sale of merchandise in the ordinary
course of business in connection with its trade operations and (ii) are
deemed by the Administrative Agent in good faith to be eligible for
inclusion in the calculation of the Borrowing Base. Without limiting the
foregoing, to qualify as a Domestic Eligible Account, an Account shall
indicate the Included Division (whether by legal or trade name) as sole
payee and as sole remittance party. In determining the amount to be so
included, the face amount of Accounts shall be reduced, without
duplication, by (a) the aggregate amount of all cash received in respect
of the Accounts but not yet applied by the Included Divisions to reduce
the amount of Accounts, (b) the amount of all actual returns, discounts,
claims, credits, charges, price adjustments or other adjustments asserted
or taken by Account Debtors of the Included Divisions (to the extent the
same are included in Accounts), and (c) the aggregate amount of all other
reserves, limits and deductions provided for in this definition and
elsewhere in this Agreement.
Standards of eligibility for Accounts may be fixed and revised from
time to time solely by the Administrative Agent in the Administrative
Agent's Permitted Discretion with ten days prior notice by the
Administrative Agent to the Borrower.
In general, without limiting the foregoing, a Domestic Eligible
Account must comply with all of the following requirements (unless
otherwise approved from time to time in writing by the Administrative
Agent):
(a) all payments due on the Account have been billed and invoiced in
a timely fashion and in the normal course of business;
(b) no payment on any invoice is outstanding on the Account for more
than 90 days after the date of invoice or is more than 60 days
past due (to be reduced by the net credit balances within these
categories);
(c) such Account is not an extended terms account which offers terms
of more than 30 days from invoice date;
(d) the payments due on 50% or more of all Accounts owing to the
Included Divisions by the applicable Account Debtor are less
than 90 days past the date of invoice;
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(e) the total Accounts owing to the Included Divisions by the
applicable Account Debtor constitute 10% or less of the
aggregate Accounts owing to the Included Divisions by all
Account Debtors, or if the total Accounts of the applicable
Account Debtor exceed 10% of the aggregate of all Accounts owing
to the Included Divisions by all Account Debtors, the Accounts
of the applicable Account Debtor up to such 10% limit shall be
deemed to constitute Domestic Eligible Accounts (subject to
compliance with all other applicable standards of eligibility)
and the Accounts of the applicable Account Debtor exceeding such
10% limit shall be included within Domestic Eligible Accounts
(subject to compliance with all other applicable standards of
eligibility) only if the Accounts exceeding such 10% limit are
backed or secured by credit insurance or a guarantee issued by a
bank reasonably satisfactory to the Administrative Agent in all
respects and such credit insurance or such guarantee has been
assigned to or issued in favor of, as the case may be, the
Administrative Agent upon terms acceptable to the Administrative
Agent in its discretion;
(f) the Account is free and clear of all security interests, liens,
charges and encumbrances of any nature whatsoever (except for
the Lien in favor of the Administrative Agent);
(g) the Account arose from a completed, outright and lawful sale of
goods, to which title has passed to the applicable Account
Debtor on an absolute sales basis, or from the rendering of
services by or on behalf of any Included Division;
(h) the Account constitutes an "account" within the meaning of the
Uniform Commercial Code of the state in which such Included
Division's principal offices are located;
(i) the Account does not arise out of a Bill and Hold,
sale-or-return, consignment, memo, progress billing,
promotional, sample or trial basis, C.O.D. or cash in advance
arrangement or is subject to any setoff, contra (any amount for
which there is an offsetting liability from any Included
Division), offset, deduction, dispute, chargeback, credit,
counterclaim, subject to retainage or holdbacks of any type or
other defense arising out of the transactions represented by the
Account or independently thereof;
(j) the applicable Account Debtor is not any authority of the United
States of America, unless there has been compliance satisfactory
to the Administrative Agent in all respects with the Assignment
of Claims Act or similar state statutes;
(k) the applicable Account Debtor is not an Affiliate of any
Included Division or any of their Subsidiaries or an employee,
officer, sales representative, agent or shareholder thereof;
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(l) the Account Debtor must be located in the United States, Canada
or another foreign jurisdiction acceptable to the Administrative
Agent (PROVIDED, that, in the case of such other foreign
jurisdiction, only 50% of the Account is eligible for inclusion
as a Domestic Eligible Account providing that all of the other
conditions set forth in clauses (l) through (t) of this
definition have been complied with), except for Accounts insured
or backed by credit insurance or a letter of credit in form and
substance acceptable to the Administrative Agent in all
respects;
(m) the Account complies with all material Requirements of Law
(including without limitation, all usury laws, fair credit
reporting and billing laws, fair debt collection practices and
rules, and regulations relating to truth in lending and other
similar matters);
(n) the Account is in full force and effect and constitutes a legal,
valid and binding obligation of the applicable Account Debtor
enforceable in accordance with the terms thereof;
(o) the Account is denominated in and provides for payment by the
applicable Account Debtor in Dollars;
(p) the Account has not been and is not required to be charged or
written off as uncollectible in accordance with GAAP;
(q) if the Account is owing by an Account Debtor for which the
applicable Included Division must have filed a "Notice of
Business Activities Report" or similar report in a state or
states where failure to comply with such filing of notice
precludes bringing suit against the applicable Account Debtor,
the applicable Included Division must have filed such requisite
activities report or other similar report and otherwise be in
full compliance with such Requirement of Law;
(r) the Account Debtor (i) is not a creditor of any Included
Division, (ii) has not asserted a right of setoff against such
Included Division or (iii) has disputed its liability (whether
by chargeback or otherwise) or made any claim with respect to
the Account or any other Account of any Included Division which
has not been resolved, in each case without duplication, to the
extent of the amount owed by the borrower to the Account Debtor,
the amount of such actual or asserted right of setoff, or the
amount to such dispute or claim as the case may be;
(s) the Account Debtor is solvent and is not the subject of any
bankruptcy case or insolvency proceeding of any kind;
(t) a check, promissory note, draft, trade acceptance or other
instrument for the payment of money has been received, presented
for payment and returned uncollected for any reason.
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In determining the aggregate amount of Accounts from the same Account
Debtor that are unpaid more than 90 days from the date of invoice or more
than 60 days from the due date pursuant to clause (b) above, there shall
be excluded the amount of any net credit balances relating to Accounts
with invoice dates more than 90 days prior to the date of determination or
more than 60 days from the due date.
"DOMESTIC ELIGIBLE FINISHED GOODS": on any date, that part of
Eligible Inventory consisting of Finished Goods of the Included Divisions
on such date as determined by an analysis of production reports or
physical inspection of work-in-process in accordance with the current and
historical classification of finished goods excluding prototypes,
demonstrators, used cranes and manlifts and rental cranes and manlifts.
"ELIGIBLE INVENTORY": on any date, the Inventory Value of the
Included Divisions and Deutsche Grove (but only (with respect to the
Included Divisions) to the extent that such inventory is subject to a
first priority perfected Lien in favor of the Administrative Agent for the
ratable benefit of the Lenders) less, without duplication, Inventory
Reserves.
Standards of eligibility for inventory may be fixed and revised from
time to time solely by the Administrative Agent in the Administrative
Agent's Permitted Discretion with ten days prior notice by the
Administrative Agent to the Borrower. In general, without limiting the
foregoing, Inventory shall in no event be considered as Eligible Inventory
without complying with the following requirements:
(a) such inventory is in good condition, meets all standards imposed
by any Governmental Authority having regulatory authority over
it, is not repair or replacement parts for machinery and
equipment, is not returned, defective or damaged or undergoing
quality review, is not seconds or thirds or stale or obsolete or
slow moving or unmerchantable, or does not otherwise conform to
the representations and warranties contained in the Loan
Documents; is not packaging or shipping supplies or materials
and is currently usable in the manufacturing process or saleable
in the normal course of business of any of the Included
Divisions and Deutsche Grove;
(b) such inventory is not in the possession of or control of any
warehouseman, bailee, or any agent or processor for or customer
of the Included Divisions, unless such warehouseman, bailee,
agent, processor, or customer has subordinated any Lien it may
claim therein pursuant to a written subordination agreement
reasonably acceptable to Administrative Agent and Deutsche Grove
(exclusive of up to $3,000,000 of Inventory in transit among any
of the Included Divisions and/or Deutsche Grove);
(c) such inventory must not be in transit and must be housed or
stored in the United States at a location owned or leased by any
of the Included Divisions and Deutsche Grove (exclusive of up to
$3,000,000 of Inventory in transit among any of the Included
Divisions and/or Deutsche Grove);
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(d) if such inventory is housed or stored at a location which is
leased, and not owned by any of the Included Divisions and
Deutsche Grove, the owner of such leased facility shall have
subordinated or waived any Lien it may claim against such
inventory, whether contractual or statutory, to the Lien which
the Administrative Agent holds against such inventory for the
ratable benefit of the Lenders pursuant to a written
subordination or waiver agreement acceptable to the
Administrative Agent in all respects;
(e) such inventory must be adequately insured to the reasonable
satisfaction of the Administrative Agent pursuant to insurance
coverage fulfilling the requirements of Section 6.5 and of the
Security Documents; and
(f) the Administrative Agent has not deemed such inventory
ineligible because the Administrative Agent reasonably considers
the value thereof to be impaired or its ability to realize such
value to be insecure.
"ELIGIBLE RAW MATERIALS": on any date, that part of Eligible
Inventory consisting of Raw Materials of the Included Divisions on such
date as shown on the Included Divisions' perpetual inventory records in
accordance with their current and historical classification of raw
materials excluding return to vendor or defective items, offsite
inventory, paints, miscellaneous packaging and supplies, chemicals
including but not limited to oil and anti-freeze, decal kits, materials
issued for research and development, items under quality review and
prototypes.
"ELIGIBLE SERVICE PARTS": on any date, the Inventory Value of
Service Parts of the Included Divisions (subject to the same standards of
eligibility as set forth in the definition of "Eligible Inventory"
hereunder) on such date as shown on the Included Divisions' perpetual
inventory records in accordance with their current and historical
classification of service parts.
"ELIGIBLE WORK-IN-PROCESS": on any date, that part of Eligible
Inventory consisting of Work-In-Process of the Included Divisions (subject
to the same standards of eligibility as set forth in the definition of
"Eligible Inventory" hereunder) on such date that constitutes
work-in-process as shown on the Included Divisions' perpetual inventory
records or equivalent reporting in accordance with their current and
historical classification of work-in-process excluding prototypes.
"FINISHED GOODS": goods to be sold by the Included Divisions or
Deutsche Grove in the normal course of business.
"FIRST AMENDMENT": the First Amendment, dated as of October 22,
1999, to the Agreement.
"GROVE US CRANE": a division of Grove U.S. LLC in accordance with
the Borrower's current and historical classification
"GROVE US MANLIFT": a division of Grove U.S. LLC in accordance with
the Borrower's current and historical classification.
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"GROVE US SERVICE PARTS": a reporting division of Grove US Crane
that provides aftermarket services to Grove US Crane and Grove US Manlift
customers.
"INACTIVE, EXCESS AND OBSOLETE INVENTORY RESERVE": the reserve
calculated by the Included Divisions or Deutsche Grove for such Inventory
in accordance with their current and historical accounting practices,
PROVIDED, that for Grove US Crane the reserve is equal to 100% of the
Inventory Value of items that are no longer in use or for which there are
excess quantities on hand.
"INCLUDED DIVISIONS": Grove US Crane, Grove US Manlift, Grove US
Service Parts and National Crane.
"INVENTORY": all Raw Materials, Work-in-Process, and Finished Goods
owned by the Included Divisions in the normal course of business.
"INVENTORY RESERVES": with respect to Inventory of the Included
Divisions at any date, the amount equal to the sum of, without
duplication, (i) the amount by which the value of the perpetual Inventory
or other similar reporting on such date exceeds the value of the Inventory
on the general ledger on such date, (ii) any profits or transfer price
additions accrued in connection with transfer of such Inventory among the
Included Divisions or among the Subsidiaries of the Borrower, (iii) any
cumulative gross favorable variance capitalized to Inventory based on
inventory turnover (production material, production manufacturing,
purchase price variance, or other variance categories) that result when
standard costs are greater than actual costs, (iv) the amount of any
Inactive, Excess and Obsolete Inventory Reserve, (v) the amount of any
reserve maintained for shrinkage and markdowns in accordance with their
respective historical accounting practices and (vi) the amount of any
accrued actual costs and expenses (such as freight duty and insurance)
required to be paid by the Included Divisions in order to take possession
at a facility of the company and the Included Divisions of any Inventory
which is then in transit and which is included in the Borrowing Base.
"INVENTORY VALUE": a dollar amount equal to the lesser of (i) the
standard cost of Inventory determined on a basis consistent with GAAP and
with the Included Divisions' current and historical accounting practice or
(ii) the market value of such Inventory; PROVIDED, HOWEVER that (a) in the
event variances under the standard cost method are capitalized, favorable
variances shall be deducted from Eligible Inventory Value and unfavorable
variances shall not be added to Eligible Inventory Value, and (b) in the
event variances under the standard cost method are expensed, a reserve
shall be determined as appropriate in order to adjust the standard cost of
Eligible Inventory Value to approximate actual cost.
"NATIONAL CRANE": National Crane Corporation.
"PERMITTED DISCRETION": the Administrative Agent's reasonable
judgment exercised in good faith and based upon its standard practice.
"RAW MATERIALS": materials used or consumed in the manufacture of
goods to be sold by the Included Divisions in the normal course of
business.
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"RESERVE FOR LEASEHOLD OBLIGATIONS": means an amount equal to three
times Deutsche Grove's monthly rent expense (as recorded on the Borrower's
financial statements for "leasehold inventory expense") for the most
recently ended fiscal month for which a Borrowing Base Certificate has
been delivered, in respect of all leased warehouse properties where
Eligible Inventory is stored.
"SECOND AMENDMENT": the Second Amendment and Waiver, dated as of
October 20, 2000, to this Agreement.
"SECOND AMENDMENT EFFECTIVE DATE": October 20, 2000.
"SERVICE PARTS": goods used in the servicing of cranes or manlifts
manufactured by an Included Division.
"WORK-IN-PROCESS": materials currently under manufacture by an
Included Division and to be sold in the normal course of business.
(b) by deleting therefrom the definition of the following defined
term and substituting in lieu thereof the following definition:
"CONSOLIDATED EBITDA": for any period, Consolidated Net Income for such
period PLUS, without duplication and to the extent reflected as a charge
in the statement of such Consolidated Net Income for such period, the sum
of (a) income tax expense and distributions to the direct and indirect
members of Holdings in lieu of taxes, (b) Consolidated Interest Expense,
non-cash interest expense not included in Consolidated Interest Expense,
amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with
Indebtedness (including the Loans), (c) depreciation and amortization
expense and other non-cash charges, (d) amortization or write-off of
intangibles (including goodwill) and organization costs, (e) the aggregate
amount of up-front or one-time fees or expenses payable in respect of
Interest Rate Protection Agreements during such period (to the extent
deducted in determining Consolidated Net Income for such period), PLUS (f)
for the periods of four consecutive fiscal quarters of the Company ended
June 30, 2001, September 30, 2001 and December 31, 2001 (and for the
purposes of Section 7.1(d) only, the periods set forth in Section 7.1(d)),
direct and indirect costs of restructuring as reasonably estimated by the
Company and reported to the Administrative Agent not to exceed $2,500,000
in an aggregate amount after September 1, 2000, PROVIDED, that such costs
are incurred during or prior to the fiscal quarter ended March 31, 2001,
PLUS (g) the amount of unrealized foreign exchange losses (net of any
gains) (or MINUS the amount of unrealized foreign exchange gains (net of
any losses)) MINUS, without duplication and to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (a)
other non-cash income and (b) gains relating to a Disposition of Property
described in Section 7.5(h) not to exceed $4,100,000.";
(c) by amending the definition of "ASSET SALE" therein by adding
after the words "clause (g)" in the parentheses in such definition the
words "and (h)";
<PAGE>
13
(d) by amending the definition of "FOREIGN PLEDGE AGREEMENTS"
therein by deleting the references to "65%" therefrom and substituting in
lieu thereof the percentage "100%";
(e) by amending the definition of "CONSOLIDATED FIXED CHARGE
COVERAGE RATIO" therein by adding immediately prior to the period at the
end of such definition the following:
(excluding, to the extent reflected therein, the amendment fee required
pursuant to the terms of Section 17(a)(ii) of the Second Amendment)
(f) by amending the definition of "PERMITTED ACQUISITION" therein by
deleting the reference to "Amendment Effective Date" therefrom and
substituting in lieu thereof the words "Second Amendment Effective Date".
3. AMENDMENTS TO SECTION 2 OF THE CREDIT AGREEMENT. (a) Subsection
2.4 of the Credit Agreement is hereby amended (1) by adding immediately
prior to the period at the end of the first sentence of paragraph (a)
thereof, the following:
PROVIDED, FURTHER, that, no Lender shall be required to make any Revolving
Credit Loan if, after giving effect to the making of such Revolving Credit
Loan, the Total Revolving Extensions of Credit at such time would exceed
the Borrowing Base at such time.
and (2) by adding thereto the following paragraph:
(d) The Borrowers hereby agree that the aggregate amount of the
Revolving Extensions of Credit shall not exceed (i) an average of
$40,000,000 for at least 14 consecutive days up to and including
April 16, 2001 and (ii) $35,000,000 for at least six consecutive
days up to and including April 23, 2001.
(b) Subsection 2.6 of the Credit Agreement is hereby amended (1) by
deleting the word "and" at the end of clause (i) of the proviso in
paragraph (a) thereof and substituting in lieu thereof a comma and (2) by
adding immediately prior to the period at the end of clause (ii) of the
proviso in paragraph (a) thereof, the following:
and (iii) the Borrower shall not request, and the Swing Line Lender shall
not make, any Swing Line Loan to the extent that, after giving effect
thereto, the Total Revolving Extensions of Credit at such time would
exceed the Borrowing Base at such time.
(c) Subsection 2.9 of the Credit Agreement is hereby amended by
adding thereto the following paragraph:
(c) The Borrowers jointly and severally agree to pay to the
Administrative Agent for the account of each Lender, an exit fee
equal to 1.25% of the Commitment of such Lender on the Second
Amendment Effective Date, and payable on the date on which all Loans
shall have been paid in full and the Commitments terminated,
PROVIDED, HOWEVER, that no such fee shall be payable if such date
occurs on or before September 30, 2001.
<PAGE>
14
(d) Subsection 2.10 of the Credit Agreement is hereby amended by
deleting the reference to "$1,000,000" therefrom and substituting in lieu
thereof the amount "$250,000".
(e) Subsection 2.12 of the Credit Agreement is hereby amended (1) by
deleting the reference to "50%" from paragraph (a) thereof the
substituting in lieu thereof the percentage "75%", (2) by deleting the
word "and" at the end of clause (ii) of paragraph (c) thereof and
substituting in lieu thereof a comma, (3) by adding immediately prior to
the period at the end of paragraph (c) thereof, the following:
and (iv) 100% of the Net Cash Proceeds from any Disposition of
Property described in Section 7.5(h) shall be applied upon receipt
as a prepayment in accordance with Section 2.12(f) without giving
effect to any Reinvestment Notice or Reinvestment Event,
(4) by deleting the reference to the words "PRO RATA" from paragraph (f)
thereof, (5) by inserting immediately after the words "Term Loans" in the
first sentence of paragraph (f) thereof, the words "in inverse order of
maturity," and (6) by inserting immediately at the end of paragraph (f)
thereof the following:
Notwithstanding any other provision of this Credit Agreement, in the
event that on or prior to March 31, 2001, an Asset Sale of any
assets set forth on Schedule 2.12 hereto (collectively, the
"Scheduled Assets")(each such sale collectively referred to herein
as a "Scheduled Asset Sale") occurs, (a) the first $6,250,000 of
such Net Cash Proceeds of such Scheduled Asset Sale shall be paid to
the Administrative Agent to be held in an account (the "Retained
Proceeds Account") for the benefit of the Revolving Credit Lenders,
to which the Borrowers and their Subsidiaries shall have no right,
title and interest, the proceeds of which shall be applied on March
31, 2001, first, to prepay the Revolving Credit Loans to reduce the
aggregate outstanding Revolving Extensions of Credit to $60,000,000
and, second, to the extent that any amount remains in such account
after reducing the Revolving Extensions of Credit to $60,000,000, to
prepay the Term Loans in the inverse order of maturity and (b) the
balance of such Net Cash Proceeds of such Scheduled Asset Sale above
$6,250,000 shall be applied to prepay the Term Loans in inverse
order of maturity on the date of the receipt of such Net Cash
Proceeds by the Borrowers or their Subsidiaries.
; PROVIDED, that the amendments set forth in clauses (1), (4), (5) and (6)
of this paragraph (e) shall only take effect upon the receipt by the
Administrative Agent of counterparts of this Amendment duly executed and
delivered by the Required Prepayment Lenders; PROVIDED, FURTHER, that the
failure to satisfy this condition shall not prejudice the effectiveness of
the other provisions of this Amendment, if otherwise effective hereunder.
(f) Subsection 2.15 of the Credit Agreement is hereby amended by
inserting at the end of paragraph (d) immediately before the period
therein the following: "and provided further that interest shall be
payable in arrears on the last day of each month
<PAGE>
15
commencing April 30, 2001 (PROVIDED, HOWEVER, that with respect to
Eurodollar Loans, interest payments will be made 30 days after the first
day of the applicable Interest Period and on the last day of such Interest
Period).
(g) Section 2 of the Credit Agreement is hereby amended by adding
thereto the following subsection:
2.27 SPECIAL CHASE REVOLVING CREDIT LOANS. (a) Notwithstanding any
provision hereof to the contrary, if at any time after the Second
Amendment Effective Date, the Borrowers request any Revolving Credit
Loan or Letter of Credit after giving effect to which the Total
Revolving Extensions of Credit exceed $64,000,000, Chase shall make
a Revolving Credit Loan for its own account (a "Special Chase
Revolving Credit Loan") in the amount equal to the difference
between (a) the Total Revolving Extensions of Credit to be
outstanding after such Revolving Credit Loan or Letter of Credit is
made or issued and (b) the greater of $64,000,000 and the Total
Revolving Extensions of Credit outstanding immediately prior
thereto. Such Special Chase Revolving Credit Loan shall be used to
fund the requested Revolving Credit Loan to the extent of the amount
of such Special Chase Revolving Credit Loan if a Revolving Credit
Loan has been requested or shall be used to prepay ratably the other
outstanding Revolving Credit Loans (including the other outstanding
Revolving Credit Loans of Chase) if a Letter of Credit has been
requested.
(b) So long as no Event of Default has occurred and is continuing,
any prepayment of the Revolving Credit Loans shall be applied,
first, to any outstanding Special Chase Revolving Credit Loan
(except that any prepayment upon a Scheduled Asset Sale or with
proceeds therefrom (including with any proceeds held in the Retained
Proceeds Account) shall be applied ratably to the Special Chase
Revolving Credit Loans and to that portion of other Revolving Credit
Loans which is equal to the difference between the Total Revolving
Extensions of Credit (less the Special Chase Revolving Credit Loans
outstanding at such time) and $60,000,000), and any reduction in the
aggregate outstanding L/C Obligations when any Special Chase
Revolving Credit Loan is outstanding shall be accompanied by a
borrowing of Revolving Credit Loans in an amount equal to the lesser
of (x) such reduction in the aggregate outstanding L/C Obligations
and (y) the outstanding Special Chase Revolving Credit Loans, with
such Revolving Credit Loans to be applied to prepay the Special
Chase Revolving Credit Loans.
(c) No Special Chase Revolving Credit Loans shall be made after
March 31, 2001 or, if earlier, any date on which the Revolving
Credit Commitments are reduced to $64,000,000 or less. After the
Second Amendment Effective Date, no Swing Line Loans shall be made
if the effect thereof would be to increase the Total Revolving
Extensions of Credit to an amount in excess of $64,000,000. The
provisions of this Section 2.27 shall not become effective (and
after the Second Amendment Effective Date, no Revolving Credit Loans
or Letters of Credit shall be made or issued which would increase
the Total Revolving Extensions of Credit
<PAGE>
16
to an amount in excess of $64,000,000) until Chase has notified the
Borrowers and the Lenders of the effectiveness of this Section.
;PROVIDED, that, the amendments set forth in this Section 4(g) shall only
take effect upon the receipt by the Administrative Agent of counterparts
of this Amendment duly executed and delivered by the Required Prepayment
Lenders; PROVIDED, FURTHER, that the failure to satisfy this condition
shall not prejudice the effectiveness of the other provisions of this
Amendment, if otherwise effective hereunder.
4. AMENDMENT TO SECTION 3 OF THE CREDIT AGREEMENT. Subsection 3.1 of
the Credit Agreement is hereby amended (1) by deleting the word "or" at
the end of clause (i) of the proviso in the first sentence of paragraph
(a) thereof and substituting in lieu thereof a comma and (2) by adding
immediately prior to the period at the end of clause (ii) of the proviso
in the first sentence of paragraph (a) thereof, the following:
and (iii) the Total Revolving Extensions of Credit at such time would
exceed the Borrowing Base at such time.
5. AMENDMENT TO SECTION 4 OF THE CREDIT AGREEMENT. Subsection 4.16
of the Credit Agreement is hereby amended by deleting the proviso at the
end of clause (c) thereof in its entirety.
6. AMENDMENT TO SECTION 5 OF THE CREDIT AGREEMENT. Subsection 5.2 of
the Credit Agreement is hereby amended, by adding thereto the following
subsection:
(c) BORROWING BASE. After giving effect to the Revolving Extensions
of Credit requested to be made on any such date and the use of
proceeds thereof, the aggregate amount of the outstanding Revolving
Extensions of Credit at such time shall not exceed the Borrowing
Base at such time.
7. AMENDMENTS TO SECTION 6 OF THE CREDIT AGREEMENT. (a) Subsection
6.1 of the Credit Agreement is hereby amended by deleting the reference to
"50 days" from paragraph (c) thereof and substituting in lieu thereof the
words "30 days".
(b) Subsection 6.2 of the Credit Agreement is hereby amended (1) by
adding immediately prior to the semi-colon at the end of paragraph (b)
thereof, the following:
, PROVIDED, that, in addition to the delivery of the foregoing, a
Compliance Certificate for the fiscal quarter ended March 31, 2001 and
containing the most current financial information available at that time
for such period, shall be furnished to the Administrative Agent and each
Lender (through the Administrative Agent) no later than April 20, 2001
(2) by deleting the word "and" at the end of paragraph (f) thereof, (3) by
inserting immediately after paragraph (f) thereof the following new paragraphs
(g) and (h):
(g) weekly, the cash flow projections of the Company for
each of the following 13 weeks;
<PAGE>
17
(h) on or before February 28, 2001, a three-year business plan that
includes, among other things, the Company's analysis of strategic
alternatives and plans for recapitalization, refinancing and
repayment of its outstanding Indebtedness; and
and (4) by relettering the existing paragraph (g) thereof as paragraph (i).
(c) Subsection 6.10 of the Credit Agreement is hereby amended by
deleting the reference to "65%" in paragraph (c) thereof and substituting
in lieu thereof the percentage "100%";
(d) Section 6 of the Credit Agreement is hereby amended by adding
thereto the following subsection:
6.12 BORROWING BASE CERTIFICATE; COLLATERAL REVIEW RIGHTS;
ADDITIONAL RESERVES. (a) Furnish to the Administrative Agent, as
soon as available and in any event within twenty (20) days after the
end of each fiscal month beginning with the month ending September
30, 2000 (or within twenty five (25) days after the end of each
fiscal month occurring on or prior to November 30, 2000), (i) a
Borrowing Base Certificate, signed by a Responsible Officer of the
Company and showing the Borrowing Base as of the close of business
on the last day of such fiscal month, and (ii) if requested by the
Administrative Agent at any other time when the Administrative Agent
reasonably believes that the then existing Borrowing Base
Certificate is materially inaccurate, as soon as reasonably
available but it in no event later than five (5) Business Days after
such request, a Borrowing Base Certificate showing the Borrowing
Base as of the date so requested, in each case with supporting
documentation (including, without limitation, the documentation
described on Schedule 1 to Exhibit M), and (iii) such other
supporting documentation and additional reports with respect to the
Borrowing Base as the Administrative Agent shall reasonably request.
(b) At any time upon the request of the Administrative Agent
or the Required Lenders through the Administrative Agent, permit the
Administrative Agent or professionals (including consultants,
accountants and appraisers) retained by the Administrative Agent or
its professionals to conduct evaluations and appraisals of (i) the
Company's practices in the computation of the Borrowing Base and
(ii) the assets included in the Borrowing Base, and pay the
reasonable fees (including reasonable and customary internally
allocated fees of employees of the Administrative Agent) and
expenses of any such representatives retained by the Administrative
Agent to conduct any such evaluation or appraisal (including,
without limitation, the reasonable and customary fees and expenses
associated with the Administrative Agent's Collateral Agent Services
Group). In connection with any collateral monitoring or review and
appraisal relating to the computation of the Borrowing Base, the
Company shall make such adjustments to the Borrowing Base as the
Administrative Agent shall require based upon the terms of this
Agreement and results of such collateral monitoring, review or
appraisal.
<PAGE>
19
(c) In the event that historical accounting practices, systems
or reserves relating to the components of the Borrowing Base are
modified in a manner that is adverse to the Lenders in any material
respect, the Company will agree to maintain such additional reserves
(for purposes of computing the Borrowing Base) in respect to the
components of the Borrowing Base and make such other adjustments to
its parameters for including the components of the Borrowing Base as
the Administrative Agent shall require based upon such
modifications.
8. AMENDMENT TO SECTION 7 OF THE CREDIT AGREEMENT. (a) Subsection
7.1 of the Credit Agreement is hereby amended by deleting the table in
paragraph (a) thereof and substituting in lieu thereof the following
table:
<TABLE>
<CAPTION>
Period Senior Leverage Ratio
------ ---------------------
<S> <C>
Closing Date to 12/31/1999 0.50 to 1.0
3/31/2000 to 6/30/2000 0.45 to 1.0
9/30/2000 to 12/31/2001 0.65 to 1.0
3/31/2002 to 12/31/2002 0.50 to 1.0
3/31/2003 to 12/31/2003 0.40 to 1.0
3/31/2004 and thereafter 0.35 to 1.0
</TABLE>
(b) Subsection 7.1 of the Credit Agreement is hereby further
amended, by adding thereto the following paragraphs:
(d) MINIMUM ADJUSTED CONSOLIDATED EBITDA. Permit the Consolidated
EBITDA of the Company for the periods set forth below as at the last
day of each such period to be less than the amount set forth below
opposite such period:
<TABLE>
<CAPTION>
Period Amount
------ ------
<S> <C>
6/30/2000 to 9/30/2000 $(33,000,000)
6/30/2000 to 12/31/2000 $(29,000,000)
6/30/2000 to 3/31/2001 $(11,500,000)
6/30/2000 to 6/30/2001 $9,000,000
6/30/2000 to 9/30/2001 $25,000,000
6/30/2000 to 12/31/2001 $29,000,000
</TABLE>
, PROVIDED, HOWEVER, the Borrowers and their respective Subsidiaries
shall not permit the Consolidated EBITDA of the Company for the
period commencing September 30, 2000 and ending March 31, 2001 to be
less than $20,000,000 as at the last day of such period and;
PROVIDED, FURTHER, that in calculating consolidated EBITDA for
purposes of the preceding proviso, the reserves and charges referred
to in clauses (i) through (iv) of Section 15 of the Second Amendment
shall be added back to Consolidated EBITDA to the extent incurred by
the Borrowers or their respective Subsidiaries during the period
commencing September 30, 2000 and ending March 31, 2001.
<PAGE>
19
(e) LIMIT ON CAPITAL EXPENDITURES. Permit Capital Expenditures for
the four consecutive fiscal quarters of the Company ended September 30, 2001 to
exceed $14,000,000.
(c) Subsection 7.4 of the Credit Agreement is hereby amended (1) by
deleting the word "and" at the end of paragraph (e) thereof and (2) by
adding immediately prior to the period at the end of paragraph (f)
thereof, the following language:
and (g) any Disposition of Property permitted pursuant to the terms of
Section 7.5(h)
(d) Subsection 7.5 of the Credit Agreement is hereby amended by
adding immediately prior to the word "and" at the end of paragraph (g)
thereof, the following language:
(h) any Disposition (other than to the Company or its Subsidiaries)
of Property constituting the sale of the Scheduled Assets of the
Borrowers substantially consistent with that previously disclosed to
the Administrative Agent, so long as it occurs prior to
March 31, 2001;
(e) Subsection 7.8 of the Credit Agreement is hereby amended (1) by
deleting the reference to "$20,000,000" from paragraph (k) thereof and
substituting in lieu thereof the amount "$10,000,000", (2) by deleting the
word "and" at the end of paragraph (n) thereof and (3) by adding
immediately prior to the period at the end of paragraph (o) thereof, the
following language:
and (p) the Company may purchase all of the capital stock of Grove France
SAS from Grove Holdings France SAS for fair-market value (as determined by
the management committee of the Company), so long as such purchase occurs
prior to March 31, 2001
(f) Subsection 7.9 of the Credit Agreement is hereby amended by
adding immediately prior to the comma at the end of paragraph (a) thereof,
the following language:
(provided that Grove Holdings France SAS and its Subsidiaries may repay
intercompany loans made by the Company (or any of its Domestic
Subsidiaries) to Grove Holdings France SAS and/or any of its Subsidiaries
in connection with the sale of Grove Holdings France SAS, so long as such
repayment occurs prior to March 31, 2001)
(g) Section 7 of the Credit Agreement is hereby amended by adding
thereto the following subsection:
7.18 LIMITATIONS ON DEPOSITS OF CASH BALANCES. Maintain Cash
Equivalents or bank deposits other than with a Lender, except for
(i) Cash Equivalents or bank deposits of the Borrower and its
Domestic Subsidiaries up to an aggregate amount of $3,000,000 and
(ii) Cash Equivalents or bank deposits of Foreign Subsidiaries.
9. AMENDMENT TO SECTION 8 OF THE CREDIT AGREEMENT. Section 8 of the
Credit Agreement is hereby amended (1) by inserting the number "(i)"
immediately prior to the
<PAGE>
20
text at the beginning of paragraph (c) thereof and (2) by inserting
immediately prior to the semi-colon at the end of paragraph (c) thereof,
the following language:
or (ii) the Borrower shall fail to deliver a Borrowing Base Certificate
pursuant to Section 6.12(a) within 10 days after such Borrowing Base
Certificate was due pursuant to such Section 6.12(a)
10. AMENDMENT TO ANNEX A OF THE CREDIT AGREEMENT. Annex A of the
Credit Agreement is hereby amended by deleting the Pricing Grid therein
and substituting in lieu thereof the Pricing Grid attached hereto as
Annex A.
11. AMENDMENT TO SCHEDULE 1.1A TO THE CREDIT AGREEMENT. Schedule
1.1A to the Credit Agreement is hereby amended by deleting the Revolving
Credit Commitments therein and substituting in lieu thereof the Revolving
Credit Commitments attached hereto as Annex B.
12. ADDITION OF SCHEDULE 2.12 TO THE CREDIT AGREEMENT. A new
Schedule 2.12 to the Credit Agreement in the form of Annex C hereto shall
be added to the Credit Agreement.
13. WAIVER OF SECTION 7.1(b) OF THE CREDIT AGREEMENT. The
Administrative Agent and the Lenders hereby agree to waive, for a period
commencing as of September 30, 2000 and continuing up to and including
December 31, 2001, the Company's compliance with the requirements of the
Consolidated Fixed Charge Coverage Ratio of Section 7.1(b) of the Credit
Agreement and any breach resulting from any failure to comply with such
requirements.
14. NOTICE OF REDUCTION IN REVOLVING CREDIT COMMITMENTS. The
Borrowers hereby give notice pursuant to the terms of Section 2.10 of the
Credit Agreement (i) of a reduction in the amount of the Revolving Credit
Commitments from $125,000,000 to $66,250,000 (it being understood that the
Revolving Credit Commitments after giving effect to such reduction shall
be as set forth in Annex B to this Amendment), such notice to take effect
on the Second Amendment Effective Date, (ii) of a reduction in the amount
of the Revolving Credit Commitments from $66,250,000 to $60,000,000, such
notice to take effect on March 31, 2001.
15. CALCULATION OF EBITDA. The Administrative Agent and the Lenders
hereby acknowledge and consent that the Company has established or taken
or may establish or take reserves or charges that will affect Consolidated
Net Income for the fiscal quarters of the Company ended September 30,
2000, December 31, 2000 and March 31, 2001, for the following items: (i)
writedown of inventory not to exceed $23,000,000, (ii) severance charges
not to exceed $10,000,000, (iii) pension expense not to exceed $5,000,000
and (iv) writedown of Accounts not to exceed $5,500,000, PROVIDED, that,
to the extent that reserves surrounding inventory or Accounts exceed the
actual losses realized with respect thereto, any gains from such
over-reserved position shall not be utilized by the Company in its
calculation of Consolidated EBITDA for the purposes of Section 7 of the
Credit Agreement.
<PAGE>
21
16. LIMITATION ON TRANSACTIONS WITH AFFILIATES. The Borrowers hereby
jointly and severally agree that each of the Company and Grove Capital
shall not, and shall not permit any of its respective Subsidiaries to,
directly or indirectly, make any payment to any Affiliate of any thereof
(other than the Company) for any management, advisory or similar services.
This provision does not prohibit any intercompany payment for any
management, advisory or similar services nor any equity compensation to
members of the Company's management committee.
17. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the Second Amendment Effective Date upon satisfaction of each
of the following conditions:
(a) the Administrative Agent shall have received:
(i) counterparts of this Amendment duly executed and delivered by
the Borrowers and the Required Lenders together with a Consent to
this Amendment duly executed and delivered by the Loan Parties;
(ii) an amendment fee for the account of each Lender executing this
Amendment and delivering its executed signature page to the
Administrative Agent prior to 5:00 p.m., New York City Time, on
October 24, 2000 in the amount equal to 0.5% of the sum of such
Lender's aggregate outstanding extensions of credit and its
unutilized Commitments (as reduced in accordance with the terms of
this Amendment) as of such date; PROVIDED, HOWEVER, that in the
event that holders of at least 75% of the sum of (i) the aggregate
unpaid principal amount of the Term Loans and (ii) the Total
Revolving Credit Commitments shall have executed and delivered this
Amendment by such time, then such fee shall be payable to each
Lender.
(iii) certificates representing 100% of the shares of Capital Stock
of each First-Tier Foreign Subsidiary (to the extent not previously
provided), together with an undated stock power for such certificate
executed in blank by a duly authorized officer of the pledgor
thereof; and
(iv) a Borrowing Base Certificate signed by a Responsible Officer of
the Company and showing the Borrowing Base as of the close of
business on July 1, 2000;
(b) the Borrowers shall have executed and delivered to the Administrative
Agent such amendments to the Guarantee and Collateral Agreement as the
Administrative Agent deems necessary or advisable in order to grant to the
Administrative Agent for the benefit of the Lenders a perfected first
priority security interest in 100% of the Capital Stock of each First-Tier
Foreign Subsidiary as provided for by the terms of this Amendment; and
(c) the Company shall have entered into agreement in form and substance
mutually satisfactory to the Administrative Agent and the Company relating
to the retention of Policano & Manzo as ongoing financial advisor for the
Lenders.
<PAGE>
22
The Administrative Agent shall give prompt notice to the Borrowers of the
satisfaction of the conditions set forth in paragraphs (a) through (c)
above.
18. REPRESENTATION AND WARRANTIES. To induce the Agents and the
Lenders parties hereto to enter into this Amendment, each Borrower hereby
represents and warrants to the Agents and all of the Lenders as of the
Second Amendment Effective Date that: (i) the unaudited consolidated
balance sheet of the Company and its consolidated Subsidiaries as at June
30, 2000 and the related unaudited consolidated statements of income and
of cash flows for the nine-month period ended on such date, certified by a
Responsible Officer, copies of which have heretofore been furnished to
each Lender, are complete and correct and present fairly the consolidated
financial condition of the Company and its consolidated Subsidiaries as at
such date, and the consolidated results of their operations and their
consolidated cash flows for the nine-month period then ended (subject to
normal year-end audit adjustments) and (ii) none of the Borrowers, nor any
of their Subsidiaries are currently making any payment to any Affiliate of
any thereof (other than the Company) for any management, advisory or
similar services, except for intercompany payments for such services and
equity compensation to members of the Company's management committee.
19. GENERAL. (a) PAYMENT OF EXPENSES. The Borrowers jointly and
severally agree to pay or reimburse the Administrative Agent for all of
its out-of-pocket costs and reasonable expenses incurred in connection
with this Amendment, any other documents prepared in connection herewith
and the transactions contemplated hereby, including, without limitation,
the reasonable fees and disbursements of (x) counsel to the Administrative
Agent and (y) counsel to the Lenders.
(b) NO OTHER AMENDMENTS; CONFIRMATION. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement
and the Notes are and shall remain in full force and effect.
(c) GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(d) COUNTERPARTS. This Amendment may be executed by one or more of
the parties to this Amendment on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Amendment signed by
all the parties shall be lodged with each Borrower and the Administrative
Agent.
(e) SUCCESSORS. The execution and delivery of this Amendment by any
Lender shall be binding upon each of its successors and assigns (including
Transferees of its commitments and Loans in whole or in part prior to
effectiveness hereof) and binding in respect of all of its Revolving
Credit Commitment and Loans.
<PAGE>
23
[This page has been intentionally left blank.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
GROVE WORLDWIDE LLC
By: /s/ Stephen L. Cripe
----------------------------------
Name: Stephen L. Cripe
Title: Senior Vice President and
Chief Financial Officer
GROVE CAPITAL, INC.
By: /s/ Stephen L. Cripe
----------------------------------
Name: Stephen L. Cripe
Title: Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Administrative Agent, Swing Line Lender,
Issuing Lender and a Lender
By: /s/ B. B. Wuthrich
----------------------------------
Name: B. B. Wuthrich
Title: Vice President
ARCHIMEDES FUNDING, L.L.C.
By: /s/ Kurt Wegleitner
----------------------------------
Name: Kurt Wegleitner
Title: Senior Vice President
BALANCED HIGH-YIELD FUND I LTD.
BY: BHF (USA) CAPITAL CORPORATION,
acting as Attorney-in-Fact
By: /s/ Dana L. Mcdougall
----------------------------------
Name: Dana L. McDougall
Title: Vice President
By: /s/ Aurelio Almonte
----------------------------------
Name: Aurelio Almonte
Title: Associate
<PAGE>
BHF (USA) CAPITAL CORPORATION
By: /s/ Dana L. Mcdougall
----------------------------------
Name: Dana L. McDougall
Title: Vice President
By: /s/ Aurelio Almonte
----------------------------------
Name: Aurelio Almonte
Title: Associate
CERES FINANCE, LTD.
By: INVESCO Senior Secured Management, Inc.,
as Sub-Managing Agent
By: /s/ Anne M. Mccarthy
----------------------------------
Name: Anne M. McCarthy
Title: Authorized Signatory
COMERICA BANK
By:
----------------------------------
Name:
Title
CONTINENTAL ASSURANCE COMPANY
By: /s/ Mark L. Gold
----------------------------------
Name: Mark L. Gold
Title: Managing Director
By: /s/ Jonathan Insull
----------------------------------
Name: Jonathan Insull
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Michael W. Lord
----------------------------------
Name: Michael W. Lord
Title: Vice President
<PAGE>
CYPRESSTREE INVESTMENT FUND, LLC
BY: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC., its Managing
Member
By: /s/ Philip C. Robbins
----------------------------------
Name: Philip C. Robbins
Title: Principal
CYPRESSTREE INVESTMENT PARTNERS II
BY: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC., its Managing
Member
By: /s/ Philip C. Robbins
----------------------------------
Name: Philip C. Robbins
Title: Principal
ELC (CAYMAN) LTD.
By: /s/ Amos N. Beason
----------------------------------
Name: Amos N. Beason
Title: Director
FLEET NATIONAL BANK,
Formerly known as BankBoston, N.A.
By:
----------------------------------
Name:
Title
FLEET BUSINESS CREDIT CORPORATION
By:
----------------------------------
Name:
Title
<PAGE>
FREMONT INVESTMENT & LOAN
By: /s/ Stephen C. Bierman
----------------------------------
Name: Stephen C. Bierman
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Robert Mcmahon
----------------------------------
Name: Robert McMahon
Title: Senior Risk Manager
HIGHLAND CRUSADER OFFSHORE
PARTNERS L.P.
By: /s/ James Dondero
----------------------------------
Name: James Dondero
Title: President
KZH CRESCENT LLC
By: /s/ Kimberly Rowe
----------------------------------
Name: Kimberly Rowe
Title: Authorized Agent
KZH CRESCENT 2 LLC
By: /s/ Kimberly Rowe
----------------------------------
Name: Kimberly Rowe
Title: Authorized Agent
KZH CRESCENT 3 LLC
By: /s/ Kimberly Rowe
----------------------------------
Name: Kimberly Rowe
Title: Authorized Agent
<PAGE>
KZH CYPRESS TREE-1 LLC
By: /s/ Kimberly Rowe
----------------------------------
Name: Kimberly Rowe
Title: Authorized Agent
KZH PAMCO LLC
By: /s/ Susan Lee
----------------------------------
Name: Susan Lee
Title: Authorized Agent
PAMCO CAYMAN LTD.
BY: HIGHLAND CAPITAL MANAGEMENT
LTD., as Collateral Manager
By: /s/ James Dondero
----------------------------------
Name: James Dondero, CFA, CPA
Title: President, Highland Capital
Management L.P.
PAM CAPITAL FUNDING LP
BY: HIGHLAND CAPITAL MANAGEMENT
LTD., as Collateral Manager
By: /s/ James Dondero
----------------------------------
Name: James Dondero, CFA, CPA
Title: President, Highland Capital
Management L.P.
KZH RIVERSIDE LLC
By: /s/ Kimberly Rowe
----------------------------------
Name: Kimberly Rowe
Title: Authorized Agent
<PAGE>
LONG DRIVE MANAGEMENT TRUST/TRI-
LINKS INVESTMENT TRUST, not in its
individual capacity but solely as Owner Trustee
By: /s/ David A. Vanaskey, Jr.
----------------------------------
Name: David A. Vanaskey, Jr.
Title: Vice President
MASSACHUSETTS MUTUAL LIFE
INSURANCE
By: /s/ Lisa J. Yoerg
----------------------------------
Name: Lisa J. Yoerg
Title: Managing Director
MERRILL LYNCH, PIERCE, FENNER &
SMITH, INC
By: /s/ Graham Goldsmith
----------------------------------
Name: Graham Goldsmith
Title: Director
ML CBO IV (Cayman Ltd)
By: /s/ James Dondero,
----------------------------------
Name: James Dondero, CFA, CPA
Title: President, Highland Capital
Management L.P.
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MGP, Inc.
its General Partner
By: /s/ Scott D. Krase
----------------------------------
Name: Scott D. Krase
Title: Vice President
<PAGE>
SEQUILS I, LTD.
By: /s/ Mark L. Gold
----------------------------------
Name: Mark L. Gold
Title: Managing Director
By: /s/ Jonathan Insull
----------------------------------
Name: Jonathan Insull
Title: Senior Vice President
SOCIETE GENERALE, SOUTHWEST
AGENCY
By:
----------------------------------
Name:
Title:
SOMERS CDO, LIMITED
By: /s/ Lisa J. Yoerg
----------------------------------
Name: Lisa J. Yoerg
Title: Managing Director
U.S. BANK NATIONAL ASSOCIATION
By:
----------------------------------
Name:
Title:
WELLS FARGO BANK, N.A.
By: /s/ Dana D. Cagle
----------------------------------
Name: Dana D. Cagle
Title: Vice President
<PAGE>
Each of the undersigned hereby consents to the foregoing Amendment
and hereby confirms, reaffirms and restates that its obligations under or in
respect of the Credit Agreement and the documents related thereto to which it is
party are and shall remain in full force and effect after giving effect to the
foregoing Amendment and agrees and confirms, in the case of National Crane
Corporation, that it is a party to the Guarantee and Collateral Agreement as a
Grantor thereunder:
GROVE HOLDINGS LLC
By: /s/ Stephen L. Cripe
----------------------------------
Name: Stephen L. Cripe
Title: Vice President and
Chief Financial Officer
GROVE WORLDWIDE LLC
By: /s/ Stephen L. Cripe
----------------------------------
Name: Stephen L. Cripe
Title: Senior Vice President and
Chief Financial Officer
GROVE CAPITAL, INC.
By: /s/ Stephen L. Cripe
----------------------------------
Name: Stephen L. Cripe
Title: Vice President and
Chief Financial Officer
GROVE U.S. LLC
By: /s/ Stephen L. Cripe
----------------------------------
Name: Stephen L. Cripe
Title: Senior Vice President and
Chief Financial Officer
CRANE ACQUISITION CORPORATION
By: /s/ Stephen L. Cripe
----------------------------------
Name: Stephen L. Cripe
Title: Vice President and
Chief Financial Officer
<PAGE>
CRANE HOLDING INC.
By: /s/ Keith R. Simmons
-----------------------------------
Name: Keith R. Simmons
Title: Senior Vice President and Secretary
GROVE FINANCE LLC
By: /s/ Stephen L. Cripe
------------------------------------
Name: Stephen L. Cripe
Title: Vice President and
Chief Financial Officer
NATIONAL CRANE CORPORATION
By: /s/ Keith R. Simmons
------------------------------------
Name: Keith R. Simmons
Title: Vice President and Secretary
